state of Hawaii DEPARTMENT OF LAND AND NATURAL RESOURCES Division of Water and Land Development Honolulu, Hawaii August 11, 1989

Transcription

1 state of Hawaii DEPARTMENT OF LAND AND NATURAL RESOURCES Division of Water and Land Development Honolulu, Hawaii August 11, 1989 Chairperson and Members Board of Land and Natural Resources State of Hawaii Honolulu, Hawaii Gentlemen: fffi ~J~ ~ ~ ~8~ fdj GEOTHERMAL/CABLE PERMIT CENTER RESUBMITTAL Adoption of proposed Administrative Rules on Geothermal/Cable System permitting The Board of Land and Natural Resources deferred action on adopting the proposed administrative rules on geothermal/cable system permitting at its July 28, 1989 meeting. The Board asked that all parties indicating interest in the proposed rules be mailed a copy of the rules so that they could have an opportunity to review the draft rules. The Board also directed that the Office of Hawaiian Affairs be added to the interagency group. The revised rules have been mailed to all parties of record and to individuals and groups who otherwise have an interest in the rules. The draft rules reflect minor changes made since the June 21, 1989, public hearings to clarify the language of the rules as suggested by the testimonies and comments received. RECOMMENDATION: That the Board approve the attached administrative rules on geothermal/cable system permitting subject to the approval of the Attorney General and the Governor. spectfull~~ubmit~ \Gi ttl:ff-1"- MANABU TAGOMORI Mana er-chief En ineer.- Approved by tile Board of land & Natural Resources at the meetmg held on ITEM 0-1

2 DEPARTMENT OF LAND AND NATURAL RESOURCES Adoption of Chapter Hawaii Administrative Rules August 11, 1989 SUMMARY Chapter , Hawaii Administrative Rules, entitled "Rules of Practice and Procedure for Geothermal and Cable System Development Permitting", is adopted.

3 HAWAII ADMINISTRATIVE RULES TITLE 13 DEPARTMENT OF LAND AND NATURAL RESOURCES SUB-TITLE 7. WATER AND LAND DEVELOPMENT Chapter 185 Rules of Practice and Procedure for Geothermal and Cable system Development permitting Subchapter 1. General Section Section Section Section Section Section Section Section Subchapter 2. Section Section Section Section Section Section Purpose Definitions Transfer of functions Consolidated permit application and review process Contested case provisions Streamlining Information services Annual report Consolidated permit application and review process Application and review procedure Application filing and fees Interagency group Consolidated permit application and review team Joint agreement Conflict resolution process Subchapter 3. Section Section Regulation of consolidated geothermal and cable system development permitting Monitoring and enforcing applicant's compliance with terms and conditions of permits Enforcement of district boundary amendments and special permits 185-1

4 Section Subchapter 1. General Section Purpose. The purpose of this chapter is to establish guidelines and procedures for consolidated geothermal and cable system development permitting. Consolidated permitting procedures are intended to coordinate and streamline permitting requirements of the diverse array of federal, state, and county land use, planning, environmental, and other related laws and regulations that affect geothermal and cable system development. [Eff: 1 (Auth: HRS Sec. 196D-9) (Imp: HRS Sec. 196D-2) Section Definitions. As used in this chapter: "Act" means the geothermal and cable system development permitting act of 1988, codified as chapter 196D, Hawaii Revised Statutes. "Agency" means any department, office, board, or commission of the State or a county government which is a part of the executive branch of that government, but does not include any public corporation or authority that may be established by the legislature for the purposes of geothermal and cable system development. "Applicant" means any person who, pursuant to statute, ordinance, rule, or regulation, requests approval or a permit for a geothermal and cable system development project. "Approval" means a discretionary consent required from an agency prior to the actual implementation of a geothermal and cable system development project. "Conflict" means a procedural disagreement between or among agencies as a result of conflicting permit, approval, or other requirements, procedures, or agency perspectives, not based on statute, ordinance, or rule established pursuant thereto, but based on administrative interpretation outside of statutory authority. "Consolidated permit application form" means a package of forms comprising the form made for this purpose by the department of land and natural resources plus the forms of whatever federal and other agencies have permitting authority over a particular project and are required to use their own application form. Information provided in this package includes but is not limited to 185-2

5 Section information identifying the applicant, the landowner, the location of the proposed geothermal and cable system development project, the types of permits required, environmental requirements, information on the geographic location of the project, a description of the proposed project, and plan information. "Department" means the department of land and natural resources or any successor agency. "Discretionary consent" means a consent, sanction, or recommendation from an agency for which judgement and free will may be exercised by the issuing agency, as distinguished from a ministerial consent. "Environmental impact statement" means, as applicable, an informational document prepared in compliance with chapter 343, Hawaii Revised Statutes, or with the National Environmental policy Act of 1969 (Public Law ). "Geothermal and cable system development project" or "project" means the commercial development, construction, installation, financing, operation, maintenance, repair, and replacement, including without limitation all applicable exploratory, testing, and predevelopment activities related to the foregoing, of: (1) a geothermal power plant or plants, including associated equipment, facilities, wells, and transmission lines, on the islands of Hawaii or Maui, for the purpose of generating electric energy for transmission primarily to the island of Oahu through the cable system; and (2) an interisland deep water electrical transmission cable system, including all land-based transmission lines and other ancillary facilities, to transmit geothermally generated electric energy from the islands of Hawaii or Maui, to the islands of Oahu or Maui, regardless of whether the cable system is used to deliver electric energy to any intervening point. "Interagency group" means a group comprised of representatives from county, State, and federal agencies involved in geothermal and cable system development permitting activities whose permitting functions are not transferred by Sec , Hawaii Revised Statutes, to the department for the purpose of consolidating the permitting process for geothermal and cable system development projects

6 section "Intervenor" means a person or agency who properly seeks by application to intervene and is entitled as of right to be admitted as a party in any court or agency proceeding. "Permit" means any license, permit, certificate, certification, approval, compliance schedule, or other similar document or decision pertaining to any regulatory or management program which is related to the protection, conservation, use of, or interference with the natural resources of land, air, or water in the State and which is required prior to or in connection with the undertaking of the project. 'Person" includes any individual, partnership, firm, association, trust, estate, corporation, joint venture, consortium, any public corporation or authority that may be established by the legislature for the purposes of the project, or other legal entity other than an agency. [Eff: 1 (Auth: HRS Sec. 196D-9 l (Imp: HRS Sees. 196D-3, HRS 196D-6l Section Transfer of functions. (al For purposes of geothermal and cable system development projects and for those projects only, the following functions are transferred to the department: the functions of the land use commission related to district boundary amendments as set forth in section et seq., Hawaii Revised statutes; and functions of the land use commission related to changes in zoning as set forth in section 205-5, Hawaii Revised Statutes; and permit approval and enforcement functions of the department of transportation related to use of or commercial activities in or affecting the ocean waters and shores of the State under chapter 266, Hawaii Revised Statutes. If a geothermal and cable system development project is not successful or is terminated as determined by the department, any change in boundary or zoning made pursuant to this section shall revert to the boundary or zoning in place before the change. (bl Regarding functions of the land use commission related to district boundary amendments as set forth in section et seq., Hawaii Revised Statutes, for district boundary amendments involving land areas greater than fifteen acres, and for land areas fifteen acres or less in conservation districts, for purposes of geothermal 185-4

7 Section and cable system development projects and for those projects only, the department shall process applications as follows. -The applicant shall file a petition for boundary amendment with the department. The petition shall be in writing and shall provide a statement of the authorization or relief sought and the statutory provisions under which authorization or relief is sought. For petitions to reclassify properties from the conservation district to any other district, the petition shall include an environmental impact statement or negative declaration approved by the department for the proposed reclassification request; the legal name of the petitioner, and the address, description of the property, the petitioner's proprietary interest in the property, and a copy of the deed or lease, with written authorization of the fee owner to file the petition. The petition shall include the type of development proposed and details regarding the development including timetables, cost, assessment of the effects of the development, and an assessment of the need for reclassification. The department shall serve copies of the application upon the county planning department and planning commission within which the subject land is situated, upon the director of the department of business and economic development, or a designated representative, and upon all persons with a property interest in the property, and upon all persons with a property interest lying within 1000 feet of the subject property, recorded in the county's real property tax records at the time the petition is filed, along with a notice of a public hearing on the matter, to be conducted on the appropriate island. The department shall set the hearing within not less than sixty and not more than one hundred eighty days after a proper application has been filed. The department shall also mail notice of the hearing to all persons who have made a timely written request for advance notice of boundary amendment proceedings, and notice of the hearing shall be published at least once in a newspaper in the county in which the land sought to be redistricted is situated as well as once in a newspaper of general circulation in the State at least thirty days in advance of the hearing. The notice shall comply with the provisions of chapter 91, Hawaii Revised statutes, shall indicate the time and place that maps showing the proposed district boundary may be inspected, and further, shall inform all interested persons of their rights regarding intervening in the proceedings. The petitioner, the office of state planning 185-5

8 Section and the county planning department within which the subject land is situated shall appear at the proceedings as parties in the petition and shall make recommendations relative to the proposed boundary change. The department shall admit any other department or agencies of the State and of the county in which the land is situated as parties upon timely application. The department shall admit any person who has some property interest in the land, who lawfully resides on the land, or within 1000 feet of the land, or who otherwise can demonstrate that they will be so directly and immediately affected by the proposed change that their interest in the proceeding is clearly distinguishable from that of the general public, as intervenors to the proposed boundary change. The department shall receive applications for leave to intervene from any member of the public, provided the department may deny an application if it appears it is substantially the same as the position of a party already admitted to the proceeding or if admission of additional parties will render the proceedings inefficient and unmanageable. The petition for intervention shall be filed with the department within fifteen days after the notice of hearing is published in the newspaper. The petition shall make reference to the following: (1) Nature of petitioner's statutory or other right; (2) Nature and extent of the petitioner's interest, and if an abutting property owner, or a property owner whose property lies within 1000 feet of the subject land, the tax map key description of the property; and (3) Effect of any decision in the proceeding on petitioner's interest. Within a period of not more than one hundred and twenty days after the close of the hearing, the department shall, by findings of fact and conclusions of law, act to approve the petition, deny the petition, or to modify the petition by imposing conditions necessary to uphold the intent and spirit of the law or to assure substantial compliance with representations made by the petitioner in seeking a boundary change. The department shall not approve an amendment of a land use district boundary unless the department finds upon the clear preponderence of the evidence that the proposed boundary amendment is reasonable, not violative of section 205-2, Hawaii Revised statutes, and consistent with the policies and criteria established pursuant to sections , and 205A-2, Hawaii Revised Statutes

9 Section In its review of any petition for reclassification of district boundaries pursuant to this chapter, the department shall specifically consider the following: (1) The extent to which the proposed reclassification conforms to the applicable goals, objectives, and policies of the Hawaii State Plan and relates to the applicable priority guidelines of the Hawaii State Plan and the adopted functional plans; (2) The extent to which the proposed reclassification conforms to the applicable district standards; (3) The impact of the proposed reclassification on the following areas of state concern: (A) Preservation or maintenance of important natural systems or habitats; (B) Maintenance of valued cultural, historical, or natural resources; (C) Maintenance of other natural resources relevant to Hawaii's economy including, but not limited to agricultural resources; (O) Commitment of state funds and resources; (E) Provision for employment opportunities and (F) economic development; and Provision for housing opportunities for all income groups, particularly the low, low-moderate and gap groups; and (4) In establishing the boundaries of the districts in each county, the department shall give consideration to the general plan of the county in which the land is located. Amendments of land use district boundary in other than conservation districts involving land areas fifteen acres or less shall be determined by the appropriate county land use decision-making authority for the district. (c) Regarding transfer of the function of the land use commission concerning changes in zoning, for purposes of geothermal and cable system development projects and for those projects only, for land within agricultural and rural districts the area of which is greater than fifteen acres, special permits of the county planning commission for geothermal and cable development projects shall be subject to approval by the department for unusual and reasonable uses within agricultural and rural districts other than those for which the district is classified

10 Cection The department may impose additional restrictions as may be necessary or appropriate in granting such approval, including the adherence to representations made by the applicant. The following guidelines are established in determining an "unusual and reasonable use": (1) The use shall not be contrary to the objectives sought to be accomplished by chapters 205 and 205A, Hawaii Revised statutes; (2) The desired use would not adversely affect surrounding property; (3) The use would not unreasonably burden public agencies to provide roads and streets, sewers, water drainage and school improvements, and police and fire protection; (4) Unusual conditions, trends and needs have arisen since the district boundaries and rules were established; and (5) The land upon which the proposed use is sought is unsuited for the uses permitted within the district. A copy of the decision together with the complete record of the proceeding before the county planning commission on all special permit requests for a geothermal and cable system development project involving a land area greater than fifteen acres shall be transmitted to the department within sixty days after the decision is rendered. Within forty-five days after receipt of the complete record from the county planning commission, the department shall act to approve, approve with modification, or deny the petition. A denial either by the county planning commission or by the department or a modification by the department as the case may be, of the desired use shall be appealable to the circuit court of the circuit in which the land is situated and shall be made pursuant to the Hawaii rules of civil procedure. (d) Regarding permit approval and enforcement functions of the department of transportation related to use of or commercial activities in or affecting the ocean waters and shores of the State under chapter 266, Hawaii Revised Statutes, for any construction, dredging, or filling within the ocean waters of the State, including ocean waters, navigable streams and harbors belonging to or controlled by the state, to be undertaken as part of a geothermal and cable systems development project, a permit application form called "Application for Work in the Ocean Waters of the State of Hawaii" (hereinafter Application 185-8

11 Section fo~ Wo~k), available at the Division of Wate~ and Land Development, shall be filed by the applicant. Requi~ements to accompany the application include an envi~onmental assessment o~ statement, a desc~iption of the sho~eline, natu~e and extent of p~oposed wo~k (such as const~uction, d~edging, disposition of d~edged mate~ial, filling, o~ othe~ wo~k), ~efe~ence to public access, effects on adjacent p~ope~ty owne~s, and othe~ info~mation pe~tinent to the p~oposed wo~k as ~equi~ed. In a~eas whe~e a Conse~vation Dist~ict Use Application (CDUA) is ~equi~ed, the Application fo~ Wo~k need not be filed. The ~equi~ements outlined above will be met via inte~-division coo~dination within the depa~tment. A sepa~ate application fo~ Application fo~ Wo~k in the sho~ewate~s of the State will no longe~ be necessa~y except when: (1) an applicant's p~oposal is in the conse~vation dist~ict, but does not ~equi~e a CDUA pe~ the depa~tment's dete~mination and (2) an applicant applies fo~ a CDUA, but in the ~eview p~ocess the depa~tment exp~esses opposition o~ objection to the p~oposal. In a~eas whe~e the p~oposed p~oject is in the ocean wate~s, but not in the conse~vation dist~ict, the applicant is ~equi~ed to file an Application fo~ Wo~k with the depa~tment. The depa~tment shall info~m and consult with, as app~op~iate, va~ious agencies that have ju~isdiction ove~ navigable wate~s. When directed, the applicant shall notify the United States Coast Gua~d of such work for publication of a "Notice to Mariners". [Eff: 1 (Auth: HRS Sec. 196D-9) (Imp: HRS Sec. 196D-IO) section Consolidated pe~mit application and ~eview process. In order to carry out the intent of the Act, the department shall establish and administer a consolidated permit application and review process as p~ovided in this chapter. The consolidated permit application and review p~ocess shall not affect or invalidate the jurisdiction o~ authority of any agency under the existing law, except to the extent that permitting functions have been transferred by the Act to the department for the purposes of the project, and each fede~al agency shall isssue its own pe~mit or approval based on its own jurisdiction. [Eff: 1 (Auth: HRS Sec. 196D-9) (Imp: HRS Sec. 196D-5) 185-9

12 Section Section Contested case provisions. Where the contested case provisions under chapter 91, Hawaii Revised Statutes, apply to anyone or more of the permits to be issued by an agency for the purposes of the project, the agency shall, if there is a contested case involving any of the permits, conduct only one contested case hearing on the permit or permits within its jurisdiction. Any appeal from a decision made by the agency pursuant to a public hearing or hearings required in connection with a permit shall be made directly on the record to the supreme court for final decision subject to chapter 602, Hawaii Revised Statutes. [Eff: ] (Auth: HRS Sec ) (Imp: HRS Sec ) Section Streamlining. The department shall monitor the processing of all permit applications under this chapter on an ongoing basis to identify inefficiencies, delays, and duplications of effort. Any alternative suggestions and recommended changes in procedures will be brought to the interagency group as appropriate for consideration and adoption, in consultation with those agencies whose permitting functions are not transferred to the department for purposes of the project and with members of the public. The department may develop legislative proposals as appropriate to eliminate any duplicative or redundant permit requirements. [Eff: 1 (Auth: HRS Sec ) (Imp: HRS Sec ) Section Information services. (a) The department shall operate a permit information and coordination center that will provide guidance to potential applicants for geothermal and cable system development projects with regard to permits and procedures that may apply to the project. The center shall be known as the geothermal and cable system development permitting information and coordination center. (b) The department shall maintain and update at the geothermal and cable system development permitting information and coordination center a repository of the laws, rules, procedures, permit requirements, and criteria of agencies whose permitting functions are not transferred

13 Section to the department for the purpose of consolidated permitting and which have control or regulatory power over any aspect of geothermal and cable systems development projects and of federal agencies having jurisdiction over any aspect of these projects. [Eff: 1 (Auth: HRS Sec. 196D-9) (Imp: HRS Sec. 196D-8) Section Annual report. The department shall submit an annual report to the governor and the legislature on its work during the preceding year. The report shall include the status of geothermal and cable system development projects, any problems encountered, any legislative actions that may be needed to improve the consolidated permit application and review process, and to implement the intent of the Act. [Eff: 1 (Auth: HRS Sec. 196D-9) (Imp: HRS Sec. 196D-ll) Subchapter 2. Consolidated permit application and review procedures Section Application and review procedure. (a) The department shall provide applicants with a geothermal/cable development consolidated permit application form. The consolidated permit application form will be available during office hours 7:45 a.m. to 4:30 p.m. Monday through Friday, except holidays, at the following address: Department of Land and Natural Resources Division of Water and Land Development 1151 Punchbowl Street, Room 227 Honolulu, Hawaii Telephone: Telefax: The department shall provide necessary assistance for applicants to fill out the consolidated geothermal/cable development application form

14 Section (b) The department shall provide advice to applicants when federal and other agencies have indicated that they wl11 not participate in the consolidated permit application and review process. The department shall assist applicants in applying directly to these agencies, and shall coordinate to the fullest extent possible the consolidated permitting process with the permitting processes of the non-participating federal and other agencies. (c) Upon receipt of the properly completed consolidated permit application, the department shall notify all State and county agencies whose permitting functions are not transferred to the department for the purpose of geothermal/cable system development permitting, as well as all federal agencies that may have jurisdiction over any aspect of the proposed project as set forth in the application, and shall invite the federal agencies and shall require State and county agencies so notified to participate in the consolidated permit application and review process. [Eff: 1 (Auth: HRS Sec. 196D-9) (Imp: HRS Sec. 196D-5) Section Application filing and fees. (a) Applicants shall attach to the consolidated permit application form a preliminary statement of project costs. A filing fee varying with the statement of project cost shall accompany consolidated permit applications as follows: project Cost $0-999,999 1,000,000-9,999,999 more than 10,000,000 Fee $200 $400 $600 (b) The fee shall be payable by checks which shall accompany applications and should be made payable to the State of Hawaii. Checks and the applications shall be submitted to:

15 Section or delivered to: State of Hawaii Qepartment of Land and Natural Resources P.O. Box 621 Honolulu, Hawaii Department of Land and Natural Resources Division of Water and Land Development 1151 Punchbowl Street, Room 227 Honolulu, Hawaii (c) Checks for filing fees required for filing applications with agencies participating in the consolidated permit application and review process but whose permitting functions have not been transferred to the department for the project shall be made out in separate amounts to the respective agencies but shall be attached to the consolidated permit application form. (d) Filing fees for federal and other agencies not participating in the consolidated permit application and review process shall be submitted directly to those agencies. [Eff: 1 (Auth: HRS Sec. 196D-9) (Imp: HRS Sec. 196D-5) Section Interagency group. (a) In order to provide coordination amongst agencies to facilitate carrying out the consolidated permit application and review process, the department shall convene an interagency group comprised of representatives of federal and other permitting agencies whose permitting functions have not been transferred to the department including but not limited to the following: U.S. Army corps of Engineers District Engineer (POD CO-Oj Building 230 Fort Shafter, Hawaii Commander in Chief U.S. Pacific Fleet Pearl Harbor, Hawaii

16 Section Commander, U.S. Coast Guard Fourteenth Coast Guard District (OAN) 300 Ala Moana Boulevard, Room 9153 Honolulu, Hawaii District Chief, Water Resources Division U.S. Geological Survey 300 Ala Moana Boulevard, Room 6110 Honolulu, Hawaii Pacific Islands Administrator U.S. Fish and Wildlife Service 300 Ala Moana Boulevard, Room 5302 P.O. Box Honolulu, Hawaii National Marine Fisheries Service Pacific Islands Coordinator 2570 Dole Street, Room 106 Honolulu, Hawaii Environmental Protection Agency Manager, Pacific Islands Contact Office 300 Ala Moana Boulevard, Room 1302 Honolulu, Hawaii Pacific Area Director National Park Service 300 Ala Moana Boulevard, Room 6305 Honolulu, Hawaii State of Hawaii Department of Transportation 869 Punchbowl Street Honolulu, Hawaii State of Hawaii Office of State Planning State Capitol, Room 410 Honolulu, Hawaii State of Hawaii Department of Health 1250 Punchbowl Street Honolulu, Hawaii

17 Section State of Hawaii Department of Business and ~conomic Development 250 South King Street Honolulu, Hawaii Office of Hawaiian Affairs 1600 Kapiolani Boulevard Honolulu, Hawaii Mayor, County of Hawaii 25 Aupuni Street Hilo, Hawaii Mayor, County of Maui 200 South High Street Wailuku, Hawaii Mayor, City and County of Honolulu Honolulu Hale 530 South King Street Honolulu, Hawaii (b) State and county agencies having permitting authority in geothermal and cable systems development projects shall participate in the activities of the interagency group. Federal agencies with permitting authority are invited to participate and the department shall give them the fullest cooperation possible in coordinating federal and State permit requirements. (c) If the legislature establishes any public corporation or authority for the purposes of implementing geothermal and cable systems development projects, then upon its establishment, the public corporation or authority shall be a member of the interagency group. The department shall convene meetings of the interagency group as required, and in appropriate locations, to organize to participate and to participate in the consolidated permit application and review process. The department shall convene a meeting of the interagency group in a timely manner upon completion of the department's review of each properly completed geothermal/cable consolidated permit application. [Eff: 1 (Auth: HRS Sec ) (Imp: HRS Sec )

18 Section Section Consolidated permit application and review team. (a) The department shall select a working team known as the consolidated permit application and review team from members of the interagency group. Applicants shall designate a representative to be available to the consolidated application and review team for purposes of processing consolidated permit applications. The consolidated application and review team shall work with the department to provide permitting coordination for each geothermal and cable system development project. The team shall consolidate the various permitting requirements for each project. (b) The department and agencies, through the consolidated permit application and review team, shall cooperate with the federal agencies to the fullest extent possible to minimize duplication and where possible promote consolidation of federal and State requirements. To the fullest extent possible, this cooperation shall include joint environmental impact statements with concurrent public review and processing at both levels of government. Where federal law has requirements that are in addition to but not in conflict with State law requirements, the department and the agencies shall cooperate to the fullest extent possible in fulfilling those requirements so that all documents shall comply with all applicable laws. [Eff: 1 (Auth: HRS Sec. 196D-9) (Imp: HRS Secs. 196D-5, 196D-6) Section Joint agreement. (a) Representatives of the State and county agencies participating on the consolidated application and review team shall sign a joint agreement committing them to meet and perform the following tasks for each project application: (1) provide a listing of all permits required for the proposed project; (2) specify the regulatory and review responsibilities of the department and each State, county, and federal agency and the responsibilities of applicants; (3) provide a timetable for regulatory review, the conduct of necessary hearings, preparation of an environmental impact statement, if necessary, and other actions required to minimize duplication and to coordinate and

19 section consolidate the activities of applicants, the department, and the state, county, and federal agencies, with the timetable accommodating existing statutes, ordinances, or rules established pursuant thereto, of each participating agency so that if one participating agency requires more time than another agency to process its portion of the consolidated permit application and cannot move up its schedule, the consolidated process shall defer to the agency with the longer time requirement; (4) coordinate hearings required for a permit, and hold hearings on the island where the proposed activity shall occur; (5) prepare alternatives for resolving administrative or procedural conflicts and bring these to the affected agencies for resolution and if none of these alternatives is satisfactory to resolve a conflict, follow the conflict resolution process in section ; (6) approve a consolidated permit compliance monitoring program and schedule prepared by the department to take effect after a proposed project is approved, to be monitored by the department; and (7) provide that each agency shall monitor and enforce the respective terms and conditions of each agency's respective permits. (b) Federal agencies are invited to sign the joint agreement for a period not to exceed the term of the entire process for each geothermal and cable system development project application submitted to the department. Signing the joint agreement and thereby participating in the consolidated application process shall not affect or invalidate the jurisdiction or authority of any agency under existing law. Each agency shall issue its own permit or approval based on its own jurisdiction. [Eff: 1 (Auth: HRS Sec. 196D-9) (Imp: HRS Sec. 196D-4)

20 section Section Conflict resolution process. (a) Should administrative or procedural conflicts, as opposed to ~onflicts of authority, which are not treated in this chapter, arise that the consolidated permit application and review team cannot resolve, the conflict resolution process described in this section shall be implemented. (bj In an administrative or procedural conflict, as opposed to a conflict of authority, which is not treated in this chapter, conflict between State departments, any affected State department head may declare that an impasse exists between that department and any department or departments of the State during any phase of the permitting process related to the geothermal and cable systems development project. Applicants may also seek an impasse declaration by filing in writing with the administrative director of the State that such a declaration should be issued if the processing of a permit application has not made significant progress for forty-five calendar days. The administrative director shall make the determination whether an impasse declaration should be made. Upon an impasse being declared, the involved department heads shall each submit a report in writing to the administrative director within ten calendar days from the date of the impasse declaration. The reports shall list the chronological events leading to the impasse, the perceived causes of the impasse, and a suggested solution. The administrative director or the administrative director's designee shall meet with the involved directors within twenty calendar days from the impasse declaration date. Should the impasse still exist following this meeting, the administrative director shall report to the governor the latest position of the directors and a recommendation. Upon a decision of the governor resolving the impasse, the involved departments shall initiate implementing the governor's decision within three calendar days from the date of the final decision. (c) In an administrative or procedural conflict, as opposed to a conflict of authority, which is not treated in this chapter, between State and county agencies, any State or county department head involved in processing an application related to the geothermal/cable project can declare that an impasse has developed between the involved county and State departments

21 Section (d) Such a declaration shall be in writing identifying. the unresolved issues and the respective positions of the affected departments. Applicants may also seek an impasse declaration by filing a written request with the administrative director of the State or the county agency which shall be designated by the mayor. Such a request for impasse declaration may be made if the processing of a permit application has not made significant progress for forty-five calendar days. Unless objected to in writing by the reviewing county and State department or State departments, an impasse declaration shall be made within ten working days from the date that the request for impasse declaration was filed. Upon an impasse being declared, the affected State and county department heads shall each submit a report in writing to both the State administrative director and the designated county agency within ten days from the date of impasse declaration. The reports shall list the chronological events leading to the impasse, the perceived causes of the impasse, and a suggested solution. The administrative director or the administrative director's designee and the head of the mayor's designated county agency or that agency's designee, shall meet with the involved State and county department heads within twenty calendar days from the impasse declaration date. Should the impasse declaration still exist following the meeting, the administrative director shall render a decision. The involved State and county departments shall initiate implementing the administrative director's decision within three calendar days from the date of the final decision. [Eff: ] (Auth: HRS Sec. 196D-9) (Imp: HRS Sec. 196D-4) Subchapter 3. Regulation of Geothermal and Cable System Development Permitting section Monitoring applicants' compliance with terms and conditions of permits. Once all the required permits have been approved, the department shall commence monitoring applicants' compliance with the terms and conditions of the permits for which the department has

22 Section full and direct responsibility, including those issued pursuant to functions transferred to the department by section 196D-lO, Hawaii Revised Statutes. The department shall prepare a schedule for monitoring terms and conditions of consolidated permits that shall be accepted by the consolidated permit application and review team. The department shall monitor permitting agencies' monitoring activities to assure permit compliance is being monitored. The monitoring schedule will identify terms and conditions of compliance, dates of monitoring, federal and other agencies and individuals who shall carry out the monitoring activity, and the date the report of the monitoring activity shall be sent to the department. The department shall maintain a log of the monitoring activities and shall alert the appropriate permitting agency if monitoring for permit compliance is not being carried out on schedule. If necessary the department in conjunction with the affected agency or agencies shall enforce all terms and conditions related to any permit. [Eff: 1 (Auth: HRS Sec ) (Imp: HRS Sec ) Section Enforcement of District Boundary Amendments and special Permits. (a) The department shall enforce compliance with conditions placed on reclassifications of district boundaries and terms and conditions of special permitted activities. (b) Whenever the department shall have reason to believe that there has been a failure to perform according to the conditions imposed, the department shall issue and serve upon the party bound by the conditions an order to show cause why the property should not revert to its former land use classification or be changed to a more appropriate classification. (1) The department shall serve the order to show cause in writing by registered or certified mail with return receipt requested at least thirty days before the hearing. A copy shall be also sent to all parties in the boundary amendment proceedings; (2) The order to show cause shall include: (A) A statement of the date, time, place, and nature of the hearing;

23 Section (B) A description and a map of the property to be affected; (e) A statement of the legal authority under which the hearing is to be held; (D) The specific sections of the statutes, or rules, or both, involved; and (E) A statement that any party may retain counsel if the party so desires. (c) The department shall conduct a hearing on an order to show cause in accordance with the requirements of chapter 91, Hawaii Revised Statutes. Any procedure in an order to show cause hearing may be modified or waived by stipulation of the parties and informal disposition may be made in any case by stipulation, agreed settlement, consent order, or default. Post hearing procedures shall conform to chapter 91, Hawaii Revised Statutes. Decisions and orders shall be issued in accordance with chapter 91, Hawaii Revised Statutes. The department shall amend its decision and order to incorporate the order to show cause by including the reversion of the property to its former land use classification or to a more appropriate classification. (dl Whenever the department finds that there is prima facie evidence that breach has occurred the special permit shall be automatically suspended pending a hearing on the continuity of such special permit provided that written request for such a hearing is filed with the department within ten days of the date of receipt of such notice of alleged breach. If no request for hearing is filed within said ten day period the department may revoke said special permit. [Eff: ] (Auth: HRS Sec. 196D-9) (Imp: HRS Sec. 196D-IO)

24 DEPARTMENT OF LAND AND NATURAL RESOURCES Chapter , Hawaii Administrative Rules, on the Summary Page dated August 11, 1989, was adopted on August 11, 1989, following a public hearing held on June 21, 1989, after a public notice was given in the Honolulu Star-Bulletin May 22, May 29 and June 14, 1989, in the Hawaii Tribune-Herald May 22 and June 14, 1989, in the Garden Isle May 22, and June 14, 1989, in the Maui News May 23 and June 14, 1989, and in West Hawaii Today May 22 and June 14, The adoption of chapter shall take effect ten days after filing with the Office of the Lieutenant Governor. William W. Paty, Chairperson Board of Land and Natural Resources APPROVED: John Waihee Governor state of Hawaii Dated: APPROVED AS TO FORM: Deputy Attorney General Filed

25 State of Hawaii DEPARTMENT OF LAND AND NATURAL RESOURCES Division of Water and Land Development Honolulu, Hawaii August 11, 1989 Chairperson and Members Board of Land and Natural Resources State of Hawaii Honolulu, Hawaii Gentlemen: Proposed Geothermal Resource Subzone Designation of Fotty Acres, TMK: , Pohoiki, Puna, Hawaii A proposal was received from Integrated Resources, Inc., requesting the designation of a 40-acre parcel located at Pohoiki, Puna., Hawaii, as a Geothermal Resource Subzone (GRS). The parcel (TMK: :15) is located adjacent to the existing Kapoho Section, Kilauea Lower East Rift GRS. Integrated Resources, Inc. (Applicant), a Hawaii corporation, is the fee simple owner of the currently agriculture-zoned 40-acre parcel (see Exhibit A). The proposal has been reviewed by the Department and in accordance with our Administrative Rules, Chapter , a public hearing on the proposal was conducted by the Board in Hilo on April 20, The majority of testimonies received were in opposition to the subzone proposal. Upon review of all testimonies and the proposal, staff has determined that applicant's intended use of the proposed subzone area is primarily for direct-use applications of geothermal resources. However, direct-use activities are currently permitted outside of designated geothermal resource subzones; and, therefore, the applicant does not need to have his property designated as a Geothermal Resource Subzone. RECOMMENDATION: That the Board deny Integrated Resources' request for geothermal resource subzone designation of a forty-acre parcel located at Pohoiki, Puna, Hawaii, and identified as TMK: : ? Attach. APPROVED F TAL Appro'j'?d by the Board of t<'lo 0'1 "LL"~l ~;esources ~'l.:,c: c, i,r,id on,, '~"'"\ I.,: ',:,) ITEM D- 2

26

27 State of Hawaii DEPARTMENT OF LAND AND NATURAL RESOURCES Division of Water and Land Development Honolulu, Hawaii August 11, 1989 Chairperson and Members Board of Land and Natural Resources State of Hawaii Honolulu, Hawaii Gentlemen: Permission to Hire Consultant for Keahua Forest Aboretum Parking Lot, Kauai The Division of Water and Land Development desires to engage the services of a engineering consultant to prepare plans and specifications for the subject project. The project will consist of constructing a parking lot. Funds to finance these services are available in Act 216, SLH 1987, ltem D-8. RECOMMENDATION: That the Board approve the hiring of an engineering consultant and authorize the Chairperson to sign the necessary documents pertaining to the project, subject to the release of funds by the Governor bmitted, MA ABU TAGOMORI Mana er-chief Engi v------_ er REQUESTED BY: /lul) rflma-lt' ( MIKE BUCK, Acting Administrator ~cv Division of Foresty and Wildlife ITTAL: WILLIAM W. Chairperson ITEM D-3

28 State of Hawaii DEPARTMENT OF LAND AND NATURAL RESOURCES Division of Water and Land Development Honolulu, Hawaii August 11, 1989 Chairperson and Members Board of Land and Natural Resources State of Hawaii Honolulu, Hawaii Gentlemen: Permission to Hire Engineering/ Architectural Consultants to Prepare Construction Plans and Specifications The Division of Water and Land Development would like to engage engineering/architectural consultants to provide design services and prepare construction plans and specifications for the following capital improvement projects: JOB NO. 89-HP-J1 95-KP-D 95-KP-A1 86-0P-C 90-KP-A1 80-HP-H6 PROJECT Lapakahi State Historical Complex North Kohala, Hawaii Wainapanapa State Park Hana, Maui Hanalei Recreational Pier Hanalei, Kauai Haena State Park - Kee Beach Haena, Kauai Nuuanu Pali State Park Honolulu, Oahu Polihale State Park Waimea, Kauai Makena La Perouse State Park Makena, Maui Kaena Point State Recreation Area, Waianae, Oahu Lava Tree State Monument Puna, Hawaii Wailoa River State Park Hilo, Hawaii SCOPE OF WORK Water System Maintenance Building Reconstruct Pier Parking Lot Landscape Improvements Shoreline Erosion Study Access Road and Parking Lot Comfort Station, Roadway, and Parking Lot Waterline and Reroofing Covered Walkways 83-0P-E Royal Mausoleum State Park Restore Kalakaua Crypt and Kamehameha Tomb and various site work Approved by the Board of Land & Natural Resources at the mee""g t,eld on Item D-4 :: 1 1 i9~,9

29 Board of Land and Natural Resources August RECOMMENDATION: That the Board approve the hiring of engineering/architectural consultants and authorize the Chairperson to sign the necessary documents pertaining the project. subject to the lease of funds by the Governor. rnitted, MAN Mana ~ \...-- BD TAGOMORI r-chief Engi eer ED BY: TO!:!::;:\ Parks administrajr WILLIAM W. -2-

30 State of Hawaii DEPARTMENT OF LAND AND NATURAL RESOURCES Division of Water and Land Development Honolulu. Hawaii July Chairperson and Members Board of Land and Natural Resources State of Hawaii Honolulu. Hawaii Gentlemen: Permission to Hire an Engineering Consultant to Provide Construction Management for Job No. 4-0W-U. Waimanalo Agricultural Park, Phase II. Irrigation System. Oahu The Board, in its June meeting. approved the award of contract to Delta Construction Co. for the construction of the subject project. The Division of Water and Land Development wishes to hire an engineering consultant to provide construction management services for this project. The project consists of the installation of approximately 25,400 lineal feet of 6 to 24-inch irrigation pipeline, including appurtenant work necessary to complete this project. Funds are available under Act 216. SLH Item A-31. RECOMMENDAT ION: That the Board approve the hiring of an engineering consultant to provide construction management and uthorize the Chairperson to sign the necessary documents. APPROVED FOR SUBMITTAL:. PATY, Chairperson ~. --I 1'f ApprONd ~ theboenfof, &and. Nettnl~ c: thelftieting held aft JUL ~_._-~-~._-_._-- ITEM. D-2

31 State of Hawaii DEPARTMENT OF LAND AND NATURAL RESOURCES Division of Water and Land Development Honolulu, Hawaii July 28, 1989 Chairperson and Members Board of Land and Natural Resources State of Hawaii Honolulu, Hawaii Gentlemen: Approval to Attend NFIP State Coordinators Workshop in San Francisco, California The Division of Water and Land Development wishes to send a Hawaii representative to a Federal Emergency Management Agency (FEMA) regional workshop in San Francisco on August 23-25, This workshop is for state coordinators connected with the National Flood Insurance Program (NFIP). Our Department of Land and Natural Resources has been participating in the NFIP Community Assistance Program (CAP) for the past several years through cooperative agreements with FEMA. The program is intended to identify, prevent, and solve floodplain management issues in the four counties of the State. Federal funds are made available for this program. In its cooperative agreement with FEMA, the Department is required to perform specified tasks which are conducive to NFIP object,ives. Program tasks for 1989 include conducting public informational meetings, presenting flood awareness material to educate the public on the NFIP, and providing technical assistance to the counties. The purpose of this regional workshop is to coordinate state activities under the CAP and to discuss new directions and developments in the program. Only those individuals who are responsible for coordinating or performing the tasks under the CAP are allowed to participate. Mr. Thomas Kam, the Division's head flood control engineer, currently performs the CAP tasks for the State of Hawaii. Attendance would be vital to our entering into future cooperative agreements with FEMA and continued participation in the NFIP. Federal funds have been provided for this purpose and will fully cover the coodinator's expenses for the workshop. RECOMMENDATION That the Board approve Mr. Thomas Kam's attendance at the August NFIP State Coordinators workshop in San Francisco, California. ubmitted, APPROVED FOR SUBMITTAL: t!f~o ABU TAGOMORI ty Director \ AppJed by the Board of land & Natural Resources at the meeting held on JUL ITEM D-3

32 7/19/89 HAWAII ADMINISTRATIVE RULES TITLE 13 DEPARTMENT OF LAND AND NATURAL RESOURCES SUB-TITLE 7. WATER AND LAND DEVELOPMENT Chapter 185 Rules of Practice and Procedure for Geothermal and Cable System Development Permitting subchapter 1. General Section Section Section Section Section Section Section Section SUbchapter 2. section Section Section Section Section Section Purpose Definitions Transfer of functions Consolidated permit application and review process Contested case provisions Streamlining Information services Annual Report consolidated permit application and review process Application and review procedure Application filing and fees Interagency group Consolidated permit application and review team Joint agreement Conflict resolution process SUbchapter 3. Section Section Regulation of consolidated geothermal and cable system development permitting Monitoring and enforcing applicant's compliance with terms and conditions of permits Enforcement of district boundary amendments and special permits 185-1

33 ~ection SUbchapter 1. General Section Purpose. The purpose of this chapter is to establish guidelines and procedures for consolidated geothermal and cable system development permitting. Consolidated permitting procedures are intended to coordinate and streamline permitting requirements of the diverse array of federal, state, and county land use, planning, environmental, and other related laws and regulations that affect geothermal and cable system development. [Eff: ] (Auth: HRS Sec. 196D-9) (Imp: HRS Sec. 196D-2) Section Definitions. As used in this chapter: "Act" means the geothermal and cable system development permitting act of 1988 codified as 196D Hawaii Revised Statutes. "Agency" means any department, office, board, or commission of the State or a county government which is a part of the executive branch of that government, but does not include any public corporation or authority that may be established by the legislature for the purposes of geothermal and cable system development. "Applicant" means any person who, pursuant to statute, ordinance, rule, or regulation, requests approval or a permit for a geothermal and cable system development project. "Approval" means a discretionary consent required from an agency prior to the actual implementation of a geothermal and cable system development project. "Conflict" means a procedural disagreement between or among agencies as a result of conflicting permit, approval, or other requirements, procedures, or agency perspectives, not based on statute, ordinance, or rule established pursuant thereto, but based on administrative interpretation outside of statutory authority. "Consolidated permit application form" means a package of forms comprising the form made for this purpose by the department of land and natural resources plus the forms of whatever federal and other agencies have permitting authority over a particular project and are required to use their own application form. Information provided in this package includes but is not limited to information identifying the applicant, the landowner, the location of the proposed geothermal and cable system development project, the types of permits required, environmental requirements, information on the geographic location of the project, a description of the proposed project, and plan information. "Department" means the department of land and natural resources or any successor agency

34 Section "Discretionary consent" means a consent, sanction, or recommendation from an agency for which judgement and free will may be exercised by the issuing agency, as distinguished from a ministerial consent. "Environmental impact statement" means, as applicable, an informational document prepared in compliance with chapter 343, Hawaii Revised Statutes, or with the National Environmental Policy Act of 1969 (Public Law ). "Geothermal and cable system development project" or "project" means the commercial development, construction, installation, financing, operation, maintenance, repair, and replacement, including without limitation all applicable exploratory, testing, and predevelopment activities related to the foregoing, of: (1) a geothermal power plant or plants, including associated equipment, facilities, wells, and transmission lines, on the islands of Hawaii or Maui, for the purpose of generating electric energy for transmission primarily to the island of Oahu through the cable system; and (2) an interisland deep water electrical transmission cable system, including all land-based transmission lines and other ancillary facilities, to transmit geothermally generated electric energy from the islands of Hawaii or Maui, to the islands of Oahu or Maui, regardless of whether the cable system is used to deliver electric energy to any intervening point. "Interagency group" means a group comprised of representatives from county, state, and federal agencies involved in geothermal and cable system development permitting activities whose permitting functions are not transferred by Sec , Hawaii Revised Statutes, to the department for the purpose of consolidating the permitting process for geothermal and cable system development projects. "Intervenor" means a person or agency who properly seeks by application to intervene and is entitled as of right to be admitted as a party in any court or agency proceeding. "Permit" means any license, permit, certificate, certification, approval, compliance schedule, or other similar document or decision pertaining to any regulatory or management program which is related to the protection, conservation, use of, or interference with the natural resources of land, air, or water in the State and which is required prior to or in connection with the undertaking of the project

35 Section "Person" includes any individual, partnership, firm, association, trust, estate, corporation, joint venture, consortium, any public corporation or authority that may be established by the legislature for the purposes of the project, or other legal entity other than an agency. [Eff: ] (Auth: HRS Sec. 196D-9 ) (Imp: HRS Secs. 196D-3, HRS 196D-6) Section Transfer of functions. For purposes of geothermal and cable system development projects and for those projects only, the following functions are transferred to the department: the functions of the land use commission related to district boundary amendments as set forth in section et seq., Hawaii Revised Statutes; and functions of the land use commission related to changes in zoning as set forth in section 205-5, Hawaii Revised Statutes; and permit approval and enforcement functions of the department of transportation related to use of or commercial activities in or affecting the ocean waters and shores of the State under chapter 266, Hawaii Revised Statutes. If a geothermal and cable system development project is not successful or is terminated as determined by the department, any change in boundary or zoning made pursuant to Section shall revert to the boundary or zoning in place before the change. (a) Regarding functions of the land use commission related to district boundary amendments as set forth in section et seq., Hawaii Revised statutes, for district boundary amendments involving land areas greater than fifteen acres, and for land areas fifteen acres or less in conservation districts, for purposes of geothermal and cable system development projects and for those projects only, the department shall process applications as follows. The applicant shall file a petition for boundary amendment with the department. The petition shall be in writing and shall provide a statement of the authorization or relief sought and the statutory provisions under Which authorization or relief is sought. For petitions to reclassify properties from the conservation district to any other district, the petition shall include an environmental impact statement or negative declaration approved by the department for the proposed reclassification request; the legal name of the petitioner, and the address, description of the property, the petitioner's proprietary interest in the property, and a copy of the deed or lease, with written authorization of the fee owner to file the petition. The petition shall include the type of development proposed and details 185-4

36 Section regarding the development including timetables, cost, assessment of the effects of the development, and an assessment of the need for reclassification. The department shall serve copies of the application upon the county planning department and planning commission within which the subject land is situated, upon the director of the department of business and economic development, or a designated representative, and upon all persons with a property interest in the property, and upon all persons with a property interest lying within 1000 feet of the subject property, recorded in the county's real property tax records at the time the petition is filed, along with a notice of a public hearing on the matter, to be conducted on the appropriate island. The department shall set the hearing within not less than sixty and not more than one hundred eighty days after a proper application has been filed. The department shall also mail notice of the hearing to all persons who have made a timely written request for advance notice of boundary amendment proceedings, and notice of the hearing shall be published at least once in a newspaper in the county in which the land sought to be redistricted is situated as well as once in a newspaper of general circulation in the State at least thirty days in advance of the hearing. The notice shall comply with the provisions of chapter 91, Hawaii Revised Statutes, shall indicate the time and place that maps showing the proposed district boundary may be inspected, and further, shall inform all interested persons of their rights regarding intervening in the proceedings. The petitioner, the office of state planning and the county planning department within which the subject land is situated shall appear at the proceedings as parties in the petition and shall make recommendations relative to the proposed boundary change. The department shall admit any other department or agencies of the State and of the county in which the land is situated as parties upon timely application. The department shall admit any person who has some property interest in the land, who lawfully resides on the land, or within 1000 feet of the land, or who otherwise can demonstrate that they will be so directly and immediately affected by the proposed change that their interest in the proceeding is clearly distinguishable from that of the general public, as intervenors to the proposed boundary change. The department shall receive applications for leave to intervene from any member of the public, provided the department may deny an 185-5

37 Section application if it appears it is substantially the same as the position of a party already admitted to the proceeding or if admission of additional parties will render the proceedings inefficient and unmanageable. The petition for intervention shall be filed with the department within fifteen days after the notice of hearing is published in the newspaper. The petition shall make reference to the following: (1) Nature of petitioner's statutory or other right; (2) Nature and extent of the petitioner's interest, and if an abutting property owner, or a property owner whose property lies within 1000 feet of the subject land, the tax map key description of the property; (3) Effect of any decision in the proceeding on petitioner's interest. Within a period of not more than one hundred and twenty days after the close of the hearing, the department shall, by findings of fact and conclusions of law, act to approve the petition, deny the petition, or to modify the petition by imposing conditions necessary to uphold the intent and spirit of the law or to assure substantial compliance with representations made by the petitioner in seeking a boundary change. The department shall not approve an amendment of a land use district boundary unless the department finds upon the clear preponderence of the evidence that the proposed boundary amendment is reasonable, not violative of section 205-2, Hawaii Revised statutes, and consistent with the policies and criteria established pursuant to Sections , and 205A-2, Hawaii Revised Statutes. In its review of any petition for reclassification of district boundaries pursuant to this chapter, the department shall specifically consider the following: (1) The extent to which the proposed reclassification conforms to the applicable goals, objectives, and policies of the Hawaii State Plan and relates to the applicable priority guidelines of the Hawaii State Plan and the adopted functional plans; (2) The extent to which the proposed reclassification conforms to the applicable district standards; 185-6

38 Section (3) The impact of the proposed reclassification on the following areas of state concern: (A) Preservation or maintenance of important natural systems or habitats; (B) Maintenance of valued cultural, historical, or natural resources; (C) Maintenance of other natural resources relevant to Hawaii's economy including, but not limited to agricultural resources; (D) Commitment of state funds and resources; (E) Provision for employment opportunities and economic development; and (F) Provision for housing opportunities for all income groups, particularly the low, low-moderate and gap groups; and (4) In establishing the boundaries of the districts in each county, the department shall give consideration to the general plan of the county in which the land is located. Amendments of land use district boundary in other than conservation districts involving land areas fifteen acres or less shall be determined by the appropriate county land use decision-making authority for the district. (b) Regarding transfer of the function of the land use commission concerning changes in zoning, for purposes of geothermal and cable system development projects and for those projects only, for land within agricultural and rural districts the area of which is greater than fifteen acres, special permits of the county planning commission for geothermal and cable development projects shall be subject to approval by the department for unusual and reasonable uses within agricultural and rural districts other than those for which the district is classified. The department may impose additional restrictions as may be necessary or appropriate in granting such approval, including the adherence to representations made by the applicant. The following guidelines are established in determining an "unusual and reasonable use": (1) The use shall not be contrary to the objectives sought to be accomplished by chapters 205 and 205A, Hawaii Revised Statutes; (2) The desired use would not adversely affect surrounding property; (3) The use would not unreasonably burden public agencies to provide roads and streets, sewers, water drainage and school improvements, and police and fire protection; 185-7

39 Section (4) Unusual conditions, trends and needs have arisen since the district boundaries and rules were established; (5) The land upon which the proposed use is sought is unsuited for the uses permitted within the district. A copy of the decision together with the complete record of the proceeding before the county planning commission on all special permit requests for a geothermal and cable system development project involving a land area greater than fifteen acres shall be transmitted to the department within sixty days after the decision is rendered. Within forty-five days after receipt of the complete record from the county planning commission, the department shall act to approve, approve with modification, or deny the petition. A denial either by the county planning commission or by the department or a modification by the department as the case may be, of the desired use shall be appealable to the circuit court of the circuit in which the land is situated and shall be made pursuant to the Hawaii rules of civil procedure. (c) Regarding permit approval and enforcement functions of the department of transportation related to use of or commercial activities in or affecting the ocean waters and shores of the State under chapter 266, Hawaii Revised Statutes, for any construction, dredging, or filling within the ocean waters of the state, including ocean waters, navigable streams and harbors belonging to or controlled by the state, to be undertaken as part of a geothermal and cable systems development project, a permit application form called "Application for Work in the Ocean Waters of the state of Hawaii" (hereinafter Application for Work), available at the Division of Water and Land Development, shall be filed by the applicant. Requirements to accompany the application include an environmental assessment or statement, a description of the shoreline, nature and extent of proposed work (such as construction, dredging, disposition of dredged material, filling, or other work), reference to public access, effects on adjacent property owners, and other information pertinent to the proposed work as required. In areas where a Conservation District use Application (CDUA) is required, the Application for Work need not be filed. The requirements outlined above will be met via inter-division coordination within the department. A separate application for Application for Work in the shorewaters of the State will no longer be necessary 185-8

40 Section except when: (1) an applicant's proposal is in the conservation district, but does not require a COUA per the department's determination and (2) an applicant applies for a COUA, but in the review process the department expresses opposition or objection to the proposal. In areas where the proposed project is in the ocean waters, but not in the conservation district, the applicant is required to file an Application for Work with the department. The department shall inform and consult with, as appropriate, various agencies that have jurisdiction over navigable waters. When directed, the applicant shall notify the United States Coast Guard of such work for publication of a "Notice to Mariners". [Eff: ] (Auth: HRS Sec ) (Imp: HRS Sec ) Section Consolidated permit application and review process. In order to carry out the intent of the Act, the department shall establish and administer a consolidated permit application and review process as provided in this chapter. The consolidated permit application and review process shall not affect or invalidate the jurisdiction or authority of any agency under the existing law, except to the extent that permitting functions have been transferred by the Act to the department for the purposes of the project, and each federal agency shall isssue its own permit or approval based on its own jurisdiction. [Eff: 1 (Auth: HRS Sec ) (Imp: HRS Sec ) Section Contested case provisions. Where the contested case provisions under chapter 91, Hawaii Revised Statutes, apply to anyone or more of the permits to be issued by an agency for the purposes of the project, the agency shall, if there is a contested case involving any of the permits, conduct only one contested case hearing on the permit or permits within its jurisdiction. Any appeal from a decision made by the agency pursuant to a public hearing or hearings required in connection with a permit shall be made directly on the record to the supreme court for final decision subject to chapter 602, Hawaii Revised Statutes. [Eff: 1 (Auth: HRS Sec. 196D-9) (Imp: HRS Sec. 196D-5) 185-9

41 Section Section Streamlining. The department shall monitor the processing of all permit applications under this chapter on an ongoing basis to identify inefficiencies, delays, and duplications of effort. Any alternative suggestions and recommended changes in procedures will be brought to the interagency group as appropriate for consideration and adoption, in consultation with those agencies whose permitting functions are not transferred to the department for purposes of the project and with members of the public. The department may develop legislative proposals as appropriate to eliminate any duplicative or redundant permit requirements. [Eff: ] (Auth: HRS Sec. 196D-9) (Imp: HRS Sec. 196D-7) Section Information services. (a) The department shall operate a permit information and coordination center that will provide guidance to potential applicants for geothermal and cable system development projects with regard to permits and procedures that may apply to the project. The center shall be known as the geothermal and cable system development permitting information and coordination center. (b) The department shall maintain and update at the geothermal and cable system development permitting information and coordination center a repository of the laws, rules, procedures, permit requirements, and criteria of agencies whose permitting functions are not transferred to the department for the purpose of consolidated permitting and which have control or regulatory power over any aspect of geothermal and cable systems development projects and of federal agencies having jurisdiction over any aspect of these projects. [Eff: ] (Auth: HRS Sec. 196D-9) (Imp: HRS Sec. 196D-8) Section Annual report. The department shall submit an annual report to the governor and the legislature on its work during the preceding year. The report shall include the status of geothermal and cable system development projects, any problems encountered, any legislative actions that may be needed to improve the consolidated permit application and review process, and to implement the intent of the Act. [Eff: ] (Auth: HRS Sec. 196D-9) (Imp: HRS Sec. 196D-ll)

42 Section subchapter 2. Consolidated permit application and review procedures Section Application and review procedure. (a) The department shall provide the applicant with a geothermal/cable development consolidated permit application form. The consolidated permit application form will be available during office hours 7:45 a.m. to 4:30 p.m. Monday through Friday, except holidays, at the following address: Department of Land and Natural Resources Division of Water and Land Development 1151 Punchbowl Street, Room 227 Honolulu, Hawaii Telephone: Telefax: The department shall provide necessary assistance for the applicant to fill out the consolidated geothermal/cable development application form. (bl The department shall provide advice to any applicant when federal and other agencies have indicated that they will not participate in the consolidated permit application and review process. The department shall assist the applicant in applying directly to these agencies, and shall coordinate to the fullest extent possible the consolidated permitting process with the permitting processes of the non-participating federal and other agencies. (cl Upon receipt of the properly completed consolidated permit application, the department shall notify all State and county agencies whose permitting functions are not transferred to the department for the purpose of geothermal/cable system development permitting, as well as all federal agencies that may have jurisdiction over any aspect of the proposed project as set forth in the application, and shall invite the federal agencies and shall require State and county agencies so notified to participate in the consolidated permit application and review process. [Eff: ] (Auth: HRS Sec. 196D-9l (Imp: HRS Sec. 196D-5)

43 Section Section Application filing and fees. The applicant shall attach to the consolidated permit application form a preliminary statement of project costs. A filing fee varying with the statement of project cost shall accompany the consolidated permit application as follows: Project Cost $0-999,999 1,000,000-9,999,999 more than 10,000,000 Fee $200 $400 $600 The fee shall be payable by check which shall accompany the application and should be made payable to the State of Hawaii. The check and the geothermal/cable development consolidated application shall be submitted to: or delivered to: State of Hawaii Department of Land and Natural Resources P.O. Box 621 Honolulu, Hawaii Department of Land and Natural Resources Division of water and Land Development 1151 Punchbowl Street, Room 227 Honolulu, Hawaii Checks for filing fees required for filing applications with agencies participating in the consolidated permit application and review process but whose permitting functions have not been transferred to the department for the project shall be made out in separate amounts to the respective agencies but shall be attached to the consolidated permit application form. Filing fees for federal and other agencies not participating in the consolidated permit application and review process shall be submitted directly to those agencies. [Eff: 1 (Auth: HRS Sec. 196D-9) (Imp: HRS Sec. 196D-5)

44 Section Section Interagency group. In order to provide coordination amongst agencies to facilitate carrying out the consolidated permit application and review process, the department shall convene an interagency group comprised of representatives of federal and other permitting agencies whose permitting functions have not been transferred to the department including but not limited to the following: U.S. Army Corps of Engineers District Engineer (POD CO-OJ Building 230 Fort Shafter, Hawaii Commander in Chief U.S. Pacific Fleet Pearl Harbor, Hawaii Commander, U.S. Coast Guard Fourteenth Coast Guard District (OAN) 300 Ala Moana Boulevard, Room 9153 Honolulu, Hawaii District Chief, Water Resources Division U.S. Geological Survey 300 Ala Moana Boulevard, Room 6110 Honolulu, Hawaii Pacific Islands Administrator U.S. Fish and Wildlife Service 300 Ala Moana Boulevard, Room 5302 P.O. Box Honolulu, Hawaii National Marine Fisheries Service Pacific Islands Coordinator 2570 Dole street, Room 106 Honolulu, Hawaii Environmental Protection Agency Manager, Pacific Islands Contact Office 300 Ala Moana Boulevard, Room 1302 Honolulu, Hawaii

45 Section Pacific Area Director National Park Service 300 Ala Moana Boulevard, Room 6305 Honolulu, Hawaii State of Hawaii Department of Transportation 869 Punchbowl Street Honolulu, Hawaii State of Hawaii Office of State Planning State Capitol, Room 410 Honolulu, Hawaii State of Hawaii Department of Health 1250 Punchbowl Street Honolulu, Hawaii State of Hawaii Department of Business and Economic Development 250 South King Street Honolulu, Hawaii Mayor, County of Hawaii 25 Aupuni Street Hilo, Hawaii Mayor, County of Maui 200 South High Street Wailuku, Hawaii Mayor, City and county of Honolulu Honolulu Hale 530 South King Street Honolulu, Hawaii State and county agencies having permitting authority in geothermal and cable systems development projects shall participate in the activities of the interagency group. Federal agencies with permitting authority are invited to participate and the department shall give them the fullest cooperation possible in coordinating federal and State permit requirements

46 section If the legislature establishes any public corporation or authority for the purposes of implementing geothermal and cable systems development projects, then upon its establishment, the public corporation or authority shall be a member of the interagency group. The department shall convene meetings of the interagency group as required, and in appropriate locations, to organize to participate and to participate in the consolidated permit application and review process. The department shall convene a meeting of the interagency group in a timely manner upon completion of the department's review of each properly completed geothermal/cable consolidated permit application. [Eff: 1 (Auth: HRS Sec ) (Imp: HRS Sec ) Section Consolidated permit application and review team. (a) The department shall select a working team known as the consolidated permit application and review team from members of the interagency group. The applicant shall designate a representative to be available to the consolidated application and review team for purposes of processing the applicant's consolidated permit application. The consolidated application and review team shall work with the department to provide permitting coordination for each geothermal and cable system development project. The team shall consolidate the various permitting requirements for each project. (b) The department and agencies, through the consolidated permit application and review team, shall cooperate with the federal agencies to the fullest extent possible to minimize duplication and where possible promote consolidation of federal and State requirements. To the fullest extent possible, this cooperation shall include joint environmental impact statements with concurrent public review and processing at both levels of government. Where federal law has requirements that are in addition to but not in conflict with state law requirements, the department and the agencies shall cooperate to the fullest extent possible in fulfilling those requirements so that all documents shall comply with all applicable laws. [Eff: 1 (Auth: HRS Sec ) (Imp: HRS Secs , ) Section Joint agreement. Representatives of the State and county agencies participating on the consolidated application and review team shall sign a joint agreement committing them to meet and perform the following tasks for each project application:

47 Section 13-18S-13 (1) provide a listing of all permits required for the proposed project; (2) specify the regulatory and review responsibilities of the department and each State, county, and federal agency and the responsibilities of the applicant; (3) provide a timetable for regulatory review, the conduct of necessary hearings, preparation of an environmental impact statement, if necessary, and other actions required to minimize duplication and to coordinate and consolidate the activities of the applicant, the department, and the State, county, and federal agencies; the timetable shall accommodate existing statutes, ordinances, or rules established pursuant thereto, of each participating agency so that if one participating agency requires more time than another agency to process its portion of the consolidated permit application and cannot move up its schedule, the consolidated process shall defer to the agency with the longer time requirement. (4) coordinate hearings required for a permit, and hold hearings on the island where the proposed activity shall occur; (S) prepare alternatives for resolving administrative or procedural conflicts and bring these to the affected agencies for resolution and if none of these alternatives is satisfactory to resolve a conflict, follow the conflict resolution process in section 13-18S-14: (6) approve a consolidated permit compliance monitoring program and schedule prepared by the department to take effect after a proposed project is approved, to be monitored by the department; (7) provide that each agency shall monitor and enforce the respective terms and conditions of each agency's respective permits. Federal agencies are invited to sign the joint agreement for a period not to exceed the term of the entire process for each geothermal and cable system development project application submitted to the department. Signing 18S-16

48 Section the joint agreement and thereby participating in the consolidated application process shall not affect or invalidate the jurisdiction or authority of any agency under existing law. Each agency shall issue its own permit or approval based on its own jurisdiction. [Eff: ] (Auth: HRS Sec. 196D-9) (Imp: HRS Sec. 196D-4) section Conflict resolution process. Should administrative or procedural conflicts, as opposed to conflicts of authority, which are not treated in this chapter, arise that the consolidated permit application and review team cannot resolve, the following conflict resolution process shall be implemented: (a) In an administrative or procedural conflict, as opposed to a conflict of authority, which is not treated in this chapter, conflict between State departments, any affected State department head may declare that an impasse exists between that department and any department or departments of the State during any phase of the permitting process related to the geothermal and cable systems development project. The applicant may also seek an impasse declaration by filing in writing with the administrative director of the State that such a declaration should be issued if the processing of a permit application has not made significant progress for forty-five calendar days. The administrative director shall make the determination whether an impasse declaration should be made. Upon an impasse being declared, the involved department heads shall each submit a report in writing to the administrative director within ten calendar days from the date of the impasse declaration. The reports shall list the chronological events leading to the impasse, the perceived causes of the impasse, and a suggested solution. The administrative director or the administrative director's designee shall meet with the involved directors within twenty calendar days from the impasse declaration date. Should the impasse still exist following this meeting, the administrative director shall report to the governor the latest position of the directors and a recommendation. Upon a decision of the governor resolving the impasse, the involved departments shall initiate implementing the governor's decision within three calendar days from the date of the final decision. (b) In an administrative or procedural conflict, as opposed to a conflict of authority, which is not treated in this chapter, between State and county agencies, any State or county department head involved in

49 Section processing an application related to the geothermal/cable project can declare that an impasse has developed between the involved county and State departments. Such a declaration shall be in writing identifying the unresolved issues and the respective positions of the affected departments. The applicant may also seek an impasse declaration by filing a written request with the administrative director of the State or the county agency which shall be designated by the mayor. Such a request for impasse declaration may be made if the processing of a permit application has not made significant progress for forty-five calendar days. Unless objected to in writing by the reviewing county and State department or State departments, an impasse declaration shall be made within ten working days from the date that the request for impasse declaration was filed. Upon an impasse being declared, the affected State and county department heads shall each submit a report in writing to both the State administrative director and the designated county agency within ten days from the date of impasse declaration. The reports shall list the chronological events leading to the impasse, the perceived causes of the impasse, and a suggested solution. The administrative director or the administrative director's designee and the head of the mayor's designated county agency or that agency's designee, shall meet with the involved State and county department heads within twenty calendar days from the impasse declaration date. Should the impasse declaration still exist following the meeting, the administrative director shall render a decision. The involved State and county departments shall initiate implementing the administrative director's decision within three calendar days from the date of the final decision. [Eff: 1 (Auth: HRS Sec. 196D-9) (Imp: HRS Sec. 196D-4) Subchapter 3. Regulation of Geothermal and Cable System Development Permitting Section Monitoring applicants' compliance with terms and conditions of permits. Once all the required permits have been approved, the department shall commence monitoring the applicant's compliance with the terms and conditions of the permits for which the department has full and direct responsibility, including those issued pursuant to functions transferred to the department by section 196D-IO, Hawaii Revised Statutes

50 Section The department shall prepare a schedule for monitoring terms and conditions of consolidated permits that shall be accepted by the consolidated permit application and review team. The department shall monitor permitting agencies' monitoring activities to assure permit compliance is being monitored. The monitoring schedule will identify terms and conditions of compliance, dates of monitoring, federal and other agencies and individuals who shall carry out the monitoring activity, and the date the report of the monitoring activity shall be sent to the department. The department shall maintain a log of the monitoring activities and shall alert the appropriate permitting agency if monitoring for permit compliance is not being carried out on schedule. If necessary the department in conjunction with the affected agency or agencies shall enforce all terms and conditions related to any permit. [Eff: ] (Auth: HRS Sec. 196D-9) (Imp: HRS Sec. 196D-5) Section Enforcement of District Boundary Amendments and Special Permits. The department shall enforce compliance with conditions placed on reclassifications of district boundaries and terms and conditions of special permitted activities. (a) Whenever the department shall have reason to believe that there has been a failure to perform according to the conditions imposed, the department shall issue and serve upon the party bound by the conditions an order to show cause why the property should not revert to its former land use classification or be changed to a more appropriate classification. (1) The department shall serve the order to show cause in writing by registered or certified mail with return receipt requested at least thirty days before the hearing. A copy shall be also sent to all parties in the boundary amendment proceedings; (2) The order to show cause shall include: (A) A statement of the date, time, place, and nature of the hearing; (B) A description and a map of the property to be affected;

51 Section (C) A statement of the legal authority under which the hearing is to be held; (D) The specific sections of the statutes, or rules, or both, involved; and (E) A statement that any party may retain counsel if the party so desires. The department shall conduct a hearing on an order to show cause in accordance with the requirements of chapter 91, Hawaii Revised Statutes. Any procedure in an order to show cause hearing may be modified or waived by stipulation of the parties and informal disposition may be made in any case by stipulation, agreed settlement, consent order, or default. Post hearing procedures shall conform to chapter 91, Hawaii Revised Statutes. Decisions and orders shall be issued in accordance with chapter 91, Hawaii Revised Statutes. The department shall amend its decision and order to incorporate the order to show cause by including the reversion of the property to its former land use classification or to a more appropriate classification. (b) Whenever the department finds that there is prima facie evidence that breach has occurred the special permit shall be automatically suspended pending a hearing on the continuity of such special permit provided that written request for such a hearing is filed with the department within ten days of the date of receipt of such notice of alleged breach. If no request for hearing is filed within said ten day period the department may revoke said special permit. [Eff: 1 (Auth: HRS Sec. 196D-9) (Imp: HRS Sec. 196D-IO)

52 State of Hawaii DEPARTMENT OF LAND AND NATURAL RESOURCES Division of Water and Land Development Honolulu, Hawaii July 28, 1989 Chairperson and Members Board of Land and Natural Resources State of Hawaii Honolulu, Hawaii Gentlemen: lpd ~~H!a~ fdj GEOTHERMAL/CABLE PERMIT CENTER RESUBMITTAL Adoption of Proposed Administrative Rules on GeothermaVCable System Permitting The Board of Land and Natural Resources deferred action on adopting the proposed administrative rules on geothermal/cable system permitting at its July 14, 1989 meeting to the July 28th meeting. The Board asked for more information on the comments by the County of Hawaii on the administrative rules. The concerns expressed by the County of Hawaii were related to conflicts in State-County relationships and the proposed conflict resolution procedure. Act 301, SLH 1988 does not affect any County powers or responsibilities, but rather incorporates County participation in the permitting process. With regard to the conflict resolution, wording has been added clarifying the procedure which deals only with administrative rather than technical process, thereby addressing the objections that were expressed. Public hearings were held simultaneously on Oahu, Hawaii, Maui and Kauai on June 21, Comments were received through July 7, 1989, and were considered in the final draft of the proposed rules. Adoption of the administrative rules are being coordinated to implement the geothermal/cable system project. RECOMMENDAnON: That the Board approve the attached administrative rules on geotherrnal/cable system permitting subject to the approv f the Attorney General and the Governor. ep;t~~~ Attach. M ABU TAGOMORI Mana er-chief Engineer APPROVED FOR SUBMITTAL ITEM D-1

53 State of Hawaii DEPARTMENT OF LAND AND NATURAL RESOURCES Division of Water and Land Development Honolulu, Hawaii March 23, 1989 Chairperson and Members Board of Land and Natural Resources State of Hawaii Honolulu, Hawaii Gentlemen: Public Hearings on Proposed Administrative Rules on Geothermal and Cable System The Division of Water and Land Development has prepared draft administrative rules for geothermal and cable system development under Act 301, SLH 1988, and is ready to have the Board of Land and Natural Resources conduct public hearings. Act 301 provides for a consolidated permitting process for geothermal/cable system projects, in which the Depanment of Land and Natural Resources is the lead agency. The Act provides for coordination and streamlining of the permitting requirements of affected County, State, and Federal agencies. It also provides for an Interagency Group of all affected agencies and a review team to expedite project applications. The draft of the administrative rules are complete and staff is now seeking Board approval to hold public hearings in order to meet a Summer 1989 target date for adoption of the administrative rules. This target date is necessary to implement the provisions of Act 301 before an RFP (request for proposal) for a geothermal/cable system project is initiated in the Fall, RECOMMENDATION: That the Board approve the holding of public hearings to receive testimony on proposed administrative rules for Act 301 on Oahu, Maui, and Hawaii, subject to the approval of the Attorney General and e Governor. -0 APPROVED FOR MITTAL, Chairperson ITEM D-l

54 State of Hawaii DEPARTMENT OF LAND AND NATURAL RESOURCES Division of Water and Land Development Honolulu, Hawaii Chairperson and Members Board of Land and Natural Resources State of Hawaii Honolulu, Hawaii March 23, 1989 Gentlemen: Plan of Operations True/Mid-Pacific Geothermal Venture Puna District, Hawaii As required by State Geothermal Resource Mining Lease No. R-S and Administrative Rules , True/Mid-Pacific Geothermal Venture, sublessee, has submitted for approval a Plan of Operations to conduct geothermal exploration activities for incremental development of ultimately 100 megawatts of electrical energy in the Puna District of Hawaii. The proposed exploration activities will be carried out on a well-by-well basis for the discovery and potential production of geothermal resources within the Kilauea Middle East Rift geothermal resource subzone. Five exploration/development (EID) areas have been planned, with three primary drilling sites located in each area. The first well site (see attached) is planned near the eastern area of the subzone, north of the rift zone in D/D area "A" and has been designated as True/Mid-Pacific AI-I. Each exploratory well will be flow tested to determine the extent and nature of the resource and whether or not sufficient quantities of geothermal steam is available for commercial production. The geothermal exploration activities described in the Plan of Operations are in accordance with the conditions set forth by the Board of Land and Natural Resources in its Decision and Order dated April 11, Following the completion of exploration activities and upon negotiation of a power purchase contract with an electric utility or other consumer, True/Mid-Pacific will submit amendments to the Plan of Operations for development of up to 25 megawatts of electrical power. RECOMMENDAnON: That the Board approve the Plan of Operations submitted by True/Mid-Pacific Geothermal Venture for exploration activities on lands leased under State Geothermal Resource Mining Lease No. R-5, subject to the following conditions: (I) That True/Mid-Pacific Geothermal Venture comply with all applicable statutes, ordinances, rules and regulations of the Federal, State, and County governments. (2) That True/Mid-Pacific Geothermal Venture comply with any other terms and conditions as may be prescribed by the Chairperson. ITEM D-2

55 ; , ~-.~~ ~'",' -. \,.: \ - \ -.\ LEGEND; (3) ~ a Planne4 explorafiomdev, are! Pcwtr plants (S - 8 acrll!'5) Or;J1inq situ (2-3 acres) f'laint:!!nance/senrlc.!! roads,a:>orojtil!'!.at~ location 'of ~~~OS~~rf~r:~~ia~~d 5 ~~~~;9 Locuia" of CV4'l~" tritornanth.a (outside of ~.It!"d SUDZanil") Source: LOCltloflS of 1a"~1I! Con.c:ttlUlIt1c-tls of 8<lb~. timanioide'!i. Scatarpd trei'i'"""occvl'" rlseillherli: 1... onia 4,2} forests, TII!'~"aola'!.and'" h.lwifen'5ii h YfH'y.. i dl!''io;ji'"!"ad.!llf'l)ughou t the 1iU~lO"1I!' 100 surrounding.it"li!'is u'lually OCl;urfttg U Sl;:attertd!nd IIt1du" l s.or sma11 9r"OYPS of tr-ees KFC AIRPORT, INC. Proposed Project Exploration/Development Areas FIGURE 5